Milstein v. Ogden

WOOD, J.

This is an action on a judgment. The Superintendent of Banks of California obtained a judgment in Yolo County against defendants Laura E. Ogden and her son and daughter, Fred R. Ogden and Laura R. Hiatt. Plaintiff purchased the judgment and commenced this action as assignee. Defendants made a motion to dismiss the action,

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as hereinafter stated, which motion was denied. A judgment by default was' entered herein against Fred Ogden and Laura Hiatt, but not against Laura Ogden. Thereafter, the defendants filed a notice of motion to quash service of summons, set aside the default judgment, and dismiss the action. This appeal is from an order denying said second motion.

This action was filed in Los Angeles County on November 24, 1943, at which time the summons was issued. On April 15, 1946, Laura Hiatt was served with a copy of the summons and a document which was a copy of the original complaint, except that a copy of the verification which was on the original complaint was not included in that document. In lieu of a copy of the verification, the words “original verified” appeared on the document which was served. On April 27, 1946, Fred Ogden was served with a copy of the summons and a purported copy of the complaint, which copy was identical with the one served on Laura Hiatt. On May 3, 1946, the three defendants filed a notice of motion to dismiss the action on the ground that there had been an unreasonable delay in serving the summons. In support of the motion, affidavits were made by Fred Ogden and Laura Hiatt to the effect that defendants were well-known in Yolo County, and that plaintiff knew, or could easily have ascertained, the whereabouts of defendants, but made no effort to serve them until March 28, 1946. Said motion came on for hearing on May 8, 1946, at which time it was submitted, and the defendants, by stipulation, were given 15 days after notice of ruling on the motion, if it should be adverse to them, to appear in the case and plead. On May 9, 1946, the motion was denied. Defendants thereafter filed no pleading. On June 6, 1946, the defaults of defendants Fred Ogden and Laura Hiatt were entered, and on June 13, 1946, a judgment by default was entered against them. On December 9, 1946, the three defendants filed their notice of motion to quash service of summons, set aside the default judgment, and dismiss the action. Notice of motion, which was supported by affidavits of all three defendants, was made upon the grounds that more than three years had elapsed since the filing of the complaint, and that the court had never obtained jurisdiction over any of the defendants, in that, Laura Ogden had not been served with a copy of the complaint and summons, and that the purported copies of the complaint which were served upon Fred Ogden and Laura Hiatt were not copies of the complaint